Bangalore District Court
Mrs. Smitha. Anthony vs Ms. Valarie Price on 17 January, 2022
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BA L, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED IS THE 17TH DAY OF JANUARY, 2022.
C.C.No.58021/2016
COMPLAINANT : Mrs. Smitha. Anthony
Wife of Mr.Anthony,
Aged about 34 years,
No.4/7, Venugopal Temple,
Behind pop corn factory,
Lingarajpuram, Bangalore560084.
.Vs.
ACCUSED : Ms. Valarie Price
D/o Mr.Louis Price,
Aged about 28 years,
No.A50, Sathyamurthy Cross,
Near Usha Palya,
Kammanahalli Main Road,
Bangalore560047.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2C.C.No.58021/2016
2. The factual matrix of the case are as follows: The complainant and accused were friends known to each other from long time, on this acquaintance, the complainant allege that, the accused approached her on 2nd May 2014 for hand loan of Rs.12,00,000/, considering the request and friendship between them, the complainant alleged to have advanced sum of Rs.12,00,000/, to the accused by cash, on it receipt the accused agreed to repay it within six months. But, thereafter, the accused pleaded her inability and filed false case against her before Banasavadi Police Station. However, it was settled between them as per it, the accused agreed to pay settlement amount of Rs.6,00,000/ on or before June 2015. Accordingly, the accused alleged to have issued cheque bearing No.339972 dated 25.11.2015 for sum of Rs.6,00,000/ drawn on ICICI Bank, Lang ford Road Branch, Bangalore with an assurance that, cheque would be honored on it presentation.
3. Believing the assurance, the complainant claims to have presented through her banker Canara Bank DCosta branch, Bangalore on 01.02.2016. But, cheque was 3 C.C.No.58021/2016 returned unpaid, vide memo dated 02.02.2016 for "account closed" based on it, the complainant was constrained to issue legal notice dated 25.02.2016 demanding the accused to pay the cheque amount, same was served on 02.03.2016, the accused replied to her notice. However, the accused denied the claim of the complainant and existence of legally enforceable debt. Therefore the complainant alleged that, the accused as per settlement held in between her and accused before Banasavadi Police Station had issued cheque for Rs.6,00,000/, towards settlement amount with dishonest intention that, even though her account was closed. Accordingly alleges that, the accused has committed an o/p/u/s 138 of N.I Act, as she failed to make the cheque amount even after service of legal notice.
4. The court took cognizance for an offense punishable under Sec.138 of N.I. Act, based on the complaint, sworn statement and documents filed by the complainant in ordered to be registered a criminal case against the accused for an o/p/u/s 138 of N.I. Act.
4C.C.No.58021/2016
5. In pursuance of summons, the accused appeared through his counsel and he was on court bail. Plea was recorded, accused pleaded not guilty and claimed to be tried, further, the accused was examined U/Sec.313 (1)
(b) of Cr.P.C., he denied the incriminating materials on record.
6. The complainant in order to prove his case got examined himself as P.W.1 and placed reliance upon Ex.P1 to P15 and also confronted Exs.P.16 to 18. On closure of complaint side evidence, the accused was examined U/s 313 Cr.P.C,. The accused denied incriminating materials on record and got examined herself as D.W.1 and placed reliance on Exs.D3 to D9 and confronted Ex.D.1 and D2 from P.W.1.
7. Heard the arguments of both the sides. The counsel for the complainant also filed his written arguments on his side, the complainant counsel during the course of argument have filed the certified copy of private complaint said to have been filed by the accused and also relied upon following decisions.
5C.C.No.58021/2016 AIR (2010) 11 SCC 441 (2018) 8 SCC 165 Crl.Apl.No.1545/2019 Uttam Ram V/s Devendra Singh Hooda.
On the contrary the counsel for the accused relied upon following decisions;
AIR (2019) SC 1983, (2008) 1 SCC 258, (2013) 3 SCC 86, (2009) 2 SCC 513 AIR 1986 AP 120, (2002) 1 SCC 97 (2016) Crl.L.J.4338, (1972) 4SCC 562, (1996) 4SCC 596, (2009) 6 SCC 72.
8. Perused the materials on record, the following points arise for my determination.
1. Whether the complaint proves beyond all reasonable doubt that, accused have committed an o/p/u/s 138 of Negotiable Instruments Act?"
2. What Order?
9. My findings to the above points are follows;
Point No1: In the Affirmative Point No.2: As per final order for forgoing;
REASONS 6 C.C.No.58021/2016
10. The complainant claims to be known friend of accused from long time, on this acquittance he alleged that, he had advanced sum of Rs.12,00,000/ by way of cash to the accused on 02.05.2015. But, the accused allegedly lodged complaint against her before Banasavadi Police Station, however the matter was settled before the police for Rs.6,00,000/. Accordingly, towards discharge of settlement amount of Rs.6,00,000/, the accused alleged to have issued a cheque bearing No.339972 for Rs.6,00,000/ dated 25.11.2015. But on it presentation, it was dishonored for "account closed", despite service of legal notice, the accused denied the liability and issued untenable reply, accordingly this complaint.
11. Per contra, the accused denied the alleged borrowal of Rs.12,00,000/ from the complainant in the month of May 2015, and issuance of cheque in question for sum of Rs.6,00,000/ as per the settlement held in between them before Banasawadi Police Station. However, she admits that she had a financial transaction with the complainant in the year 2012 September, that she borrowed Rs.1,60,000/ from the complainant for shifting her residence to new house, out of that, she already claims to 7 C.C.No.58021/2016 have repaid Rs.80,000/ in the month of October 2014, but on 14.10.2014, the complainant allegedly trespassed into her house and took her jewelery, then the complainant allegedly kept sum of Rs.50,000/ in front of her and forcibly made her to count the amount as if she had sold house hold article to the complainant, same was video graphed.
12. Later on, the complainant by forcibly taken away her signed blank cheque, signed bond papers, house hold articles, and claimed that she set off the balance, therefore she alleged to have lodged the complaint to the Banasawadi Police Station about this incident, however, the matter was settled for Rs.50,000/ in police station, accordingly, she agreed to pay Rs.50,000/ to the complainant on or before 31.12.2015, thereafter she claims to have repaid the agreed amount of Rs.50,000/, same was video graphed and photos were obtained. Even then, the complainant presented her cheque and issued legal notice, however she claims to have replied suitably, and then she filed private complaint alleging the fraudulent of the complainant. Accordingly, she denies 8 C.C.No.58021/2016 the existence of legally enforceable debt and issuance of cheque in question in favour of the complainant for sum of Rs.6,00,000/. As per the settlement held in between them before the Banasavadi Police station.
13. So, considering the rival contentions of the parties it is crystal clear that, the complainant and accused were well known to each other and there were financial transaction between them. Further, the accused does not dispute the compliance of Section 138A to C of N.I.Act, the cheque in question Ex.P.1 and signature found on Ex.P.1(a) is of the accused. However, she denies the existence of legally enforceable debt and issuance of cheque in question towards discharge of legally enforceable debt as claimed by the complainant. So, burden is on the complainant to prove the existence of legally enforceable debt.
14. The complainant in order to discharge her burden, she got examined herself as P.W.1 and reiterated the complaint averments in her examination chief affidavit and placed reliance on the Ex.P.1 cheque. The accused subjected the P.W.1 for cross examination, wherein she 9 C.C.No.58021/2016 suggested that complainant had stolen Ex.P.1 cheque from her residence illegally. That apart, even during the course of her examination in chief, stated on oath that, on 14.10.2014 the complainant had stolen her signed blank cheques and signed bond papers from cupboard of her residence. So, which unequivocally stands proved the case of complainant that, the Ex.P.1 cheque and Ex.P.1(a) is of the accused, in other words cheque in question pertains to the accused account and Ex.p1(a) is the accused signature. So, though the accused denies the transaction held in between her and the complainant during month of May 2014, as claimed by the complainant for sum of Rs.12,00,000/, but as rightly argued by the counsel for the complainant by relying upon a decision of Hon'ble Apex court i.e., (2010) 1 SCC 441 i.e., Rangappa V/s Mohan;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the 10 C.C.No.58021/2016 complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
15. Therefore, once the accused admits the cheque and signature on the cheque belongs to her, it is imperative to draw presumption in favour of the holder the cheque i.e., complainant that cheque in question was issued towards discharge of legally enforceable debt u/s 139 and 118A of N.I.Act, and that cheque has been issued for consideration and legally enforceable debt. Accordingly, the initial presumption has been drawn in favour of the complainant that, the cheque in question Ex.P.1 issued by the accused towards discharge of legally enforceable debt. However, the said presumption is a rebuttal one. Therefore, the onus is on the accused to rebut the presumption drawn in favour of the complainant that, the claimed debt was not in existence and cheque in question not issued towards discharge of legally enforceable debt as claimed by the complainant and the standard of proof to rebut the presumption is not beyond reasonable doubt, 11 C.C.No.58021/2016 but, preponderance of probabilities. Therefore at this stage, it is relevant to note that a decision of Hon'ble Apex court i.e., Sumethi Viz Vs. M/s. Paramount Tech. Fab. Industries, held that, " To disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt didn't exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they didn't exist".
16. The accused in order to discharge the onus or to rebut the presumption drawn in favour of the complainant has cross examined the P.W.1, and also adduced her evidence, before appreciating the evidence on record, it is worth to note, the argument of learned counsel for the accused, he mainly focused his argument on five points i.e., (I) financial capacity or source of funds to the complainant to lend the claimed amount of 12 C.C.No.58021/2016 Rs.12,00,000/, (2) variance in legal notice and complaint, (3) the complainant has stolen her signed blank cheques, as such section 138 does not attract, (4) the material alteration, and lastly the Ex.P.18 corroborates the case of the defense. Accordingly, the learned counsel for the accused by relying upon following decisions;
AIR (2019) SC 1983, (2008) 1 SCC 258, (2013) 3 SCC 86, (2009) 2 SCC 513 AIR 1986 AP 120, (2002) 1 SCC 97 (2016) Crl.L.J.4338, (1972) 4SCC 562, (1996) 4SCC 596, (2009) 6 SCC 72
17. Argued that, the accused has successfully rebutted the presumption drawn in favour of the complainant accordingly prayed to acquit the accused.
18. On the other hand, the learned counsel for the complainant argued that, the accused has taken multiple defenses with regard to custody of the cheque in question, but which are inconsistent to each other and the accused alleged that, the complainant has stolen the cheque in question from her house, but no evidence produced to that effect, even about custody of the cheque, the accused has taken multiple defense in PCR.No.51319/2016 filed 13 C.C.No.58021/2016 by the accused soon after presentation of the cheque in question for encashment got dismissed on 23.03.2016, wherein she claimed that, the cheque in question was lost, and earlier cheque issued by the accused admitted i.e., Ex.P.16 that was confronted to the accused was returned for unpaid for "Funds Insufficient" but not for "account closed" as claimed by the accused, the earlier cheque issued by the accused as per Ex.P.16, though the accused knew that, the cheque was presented for encashment admittedly the accused has not taken any legal action as per Ex.P.18 confronted to the accused on 21.10.2014 and admitted the balance amount of Rs.6,50,000/ agreed to repaid by the accused to the complainant in writing.
19. Considering the rival contents with the materials on record clearly transpires that, the accused has disputed or challenged the financial capacity of P.W.1 by contending that, the complainant is a home maker does not have an individual income, the documents relied by the complainant under Exs.P.8 to 15 i.e., bills about pledging of her golden ornaments cannot be acceptable as the name in the said bills clearly discloses one Sumitha Antony and Usha Antony, but not the name of the 14 C.C.No.58021/2016 complainant, further, out of eight bills, six bills are pertaining to the year 2010, by that time the complainant did not know the accused, that apart, during the course of crossexamination of P.W.1 says though, she advanced loan amount, by pledging her jewelery and also chit amount in the year 2014, but chit fund was closed in the year 2017. Therefore, the evidence of P.W.1 is contrary to her claim and defense relied by the complainant cannot be acceptable.
20. On the other hand, the learned counsel for the complainant argued that, the bills Exs.P.8 to 15 clearly discloses the amount exceeds than, the amount, therefore the bills are clearly discloses the financial capacity of the complainant to advance the amount as such the case of the complainant cannot be doubted, the learned counsel for the accused relied upon a decision of Hon'ble Apex court in Basavalingappa V/s. Mudibasappa in support of his argument.
21. Considering the rival contention with the materials on record, it is true that as per decision referred by the accused it is well settled law that, whenever the accused 15 C.C.No.58021/2016 challenges the financial capacity, the complainant has to prove his capacity to advance the claimed amount as on the date of advancement of this loan. Therefore, the burden is on the complainant in order to prove the same, she relied upon Exs.P.8 to 15, the complainant claims that, on 2nd May 2014, claims to have paid an amount of Rs.12,00,000/by cash. However in her evidence affidavit, she does not discloses her occupation, but during the course of crossexamination the accused elicited that, the complainant is home maker and she does not have any income, however on specific question posed by the accused about accumulation of amount to advance the claimed amount of Rs.12,00,000/, P.W.1 specifically stated she received more than Rs.9,00,000/ by pledging her golden ornaments, and received amount from chit fund same was claims to had paid to the accused, to substantiate her claim, she placed reliance on Exs.P.5 to 15 bills. But, the complainant does not produce any documents to show that, she also received chit amount as said in her crossexamination. However, the accused though denies the financial capacity of the complainant for advancing the alleged amount of Rs.12,00,000/ but admits that, she had received Rs.1,60,000/ from the 16 C.C.No.58021/2016 complainant as a loan, if so, it is clearly stands proved that, there was financial transaction between complainant and accused, as such according to the accused, she borrowed Rs.1,60,000/ from the complainant in year 2012, by that time, the accused does not dispute the financial capacity of complainant for advancing the sum of Rs.1,60,000/. The said suggestion of the accused, though denied by the complainant but it is relevant to considered because the accused herself has suggested capacity of the complainant to advance Rs.1,60,000/ in the year 2012.
22. In addition, the complainant to prove the accumulation of sum of Rs.12,00,000/ as challenged by the accused placed reliance on Exs.P.8 to 15, on careful perusal of the bills, which clearly discloses on 17.05.2013 sum of Rs.1,66,770/, again on the same day sum of Rs.80,000/, as per Ex.P.10 on 24.01.2011 sum of Rs.2,80,000/, as per Ex.P.11 dated 09.12.2010 sum of Rs.1,04,646/, as per Ex.P.12 dated 09.09.2010 sum of Rs.1,69,497/, as per Ex.P.13 for sum of Rs.1,63,197/ on 09.09.2010 as per Ex.P.14 on 23.08.2010 sum of Rs.1,76,889/, as per Ex.P.15 dated 23.08.2010 sum of 17 C.C.No.58021/2016 Rs.1,76,988/. The accused vehemently questioned these documents and urged that, since these bills standing in the name of one Sunitha Antony and Usha Antony, therefore it is not pertaining to the complainant, as the name of the complainant is different than, the name mentioned in the bills, as such, which are concocted and cannot be acceptable. But, on careful scrutiny of these document it clearly reveals that Exs.P.10 to 15, though the bills were much earlier to the alleged advancement of loan and bills standing in the name of one Usha antony. However, in her admitted documents produced i.e., the copy of the complaint dated 14.10.2014 lodged by the accused before Banasawadi police station has clearly mentioned by the accused that, the complainant is also knownly called as Usha Antony, therefore the objection raised by the accused during the course of the cross examination to produce the document to show that, the complainant is also been called as Usha Antony cannot be tenable, as such the bills Exs.P.10 to 15 discloses, the complainant had pledged her golden ornaments and received amount of rupees more than Rs.9,00,000/ prior to the advancement of the loan.
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23. That apart, as per Exs.P.8 and 9, she also received more than Rs.2,50,000/, by pledging the golden ornaments in the year 2013, though the bills are standing in the name of Sunitha Antony, but the complainant explained spelling of her name was wrongly typed in the bills, though the accused questioned that, Exs.P.8 and 9 are not pertaining to the complainant, but the address mentioned in the complaint and bills Exs.P.8 and 9 are one and the same. Therefore, the explanation offered by the complainant cannot be discarded or brushed aside merely because of incorrect spelling mentioned in Exs.P.8 and 9. Therefore, considering these bills Exs.P.8 to 15 clearly discloses that, more than Rs.10,00,000/, amount was received by the complainant by pledging her golden ornaments. Further, though the complainant failed to produce the amount received from chit amount, but which does not itself is a ground to discard the claim of the complainant, when the bills itself clearly discloses more than Rs.10,00,000/, she received the amount from the pledging of golden ornaments much prior to the alleged advancement of loan. Therefore, the decision relied by the accused is not applicable to the case in hand, because in the said case, the complainant was retired 19 C.C.No.58021/2016 official drawing pension and also availed loan from bank, on that basis, the Hon'ble Apex court considering the financial position of the complainant, the accused got acquitted in that case, but, herein this case dispute between two womens, the accused herself contends that, she had received Rs.1,60,000/ as a loan from the complainant but denies the present claim for Rs.12,00,000/. However, the complainant satisfactorily explained by producing the Exs.P.8 to 15 documents that though she is a home maker, she had pledged her golden ornaments worth more than Rs.10,00,000/ and received amount from non banking financial institutions by pledging her golden ornaments, which clearly stands proved that, the capability of the complainant to advance the claimed amount during the year 2014, as such the argument of learned counsel for the accused so far as financial incapability of the complainant is not tenable.
24. Further, the accused specifically contended that, on 14.10.2014 the complainant has allegedly trespassed into her residence and stolen her signed blank cheques, there by the complainant allegedly altered her cheque and misused, on these aspect, the learned counsel for the 20 C.C.No.58021/2016 accused specifically argued that, though the accused admits signature on the cheque, but denied the issuance of the cheque, so far as alleged stolen of the cheque, the accused lodged a complaint to the Banasavadi police in an undisputed point of time i.e., on 14.10.2014, the copy of the complaint has been produced, as such he has been consistently deposed before the court that, the cheque in question had stolen by the complainant on 14.10.2014. Further, the complainant confronted Ex.P.16 cheque is a crucial document dated 16.10.2014 only after lodging a complaint i.e., within two days from the date of her complaint. The complainant presented it, however the complainant did not launch any proceedings on this Ex.P.16 and if the court compares the writings of Exs.P.1 and P16 are entirely different, further, in legal notice Ex.P.3, the complainant claims that, due to inability of the accused to pay hand loan, the accused has filed false complaint before the police on 11.12.2014, and agreed to pay Rs.6,00,000/ within June 2015, if the version of the complainant was true, then how did Ex.P.16 came into the possession of the complainant which is dated 16.10.2014, there is no explanation for that, further the Ex.P.18 a letter allegedly issued by the accused denied the 21 C.C.No.58021/2016 contents, even though admitted the signature, which is dated 21.10.2014, but, which is much earlier to the settlement alleged to have held before the Banasavadi police on 11.12.2014. Further, the complainant has conveniently omitted the date of complaint lodged to the police and settlement, either in complaint, evidence affidavit or in legal notice, as such Ex.P.18 cannot be believable, in view of absence of proof of contents, that apart the suggestions of the complainant to the D.W.1 clearly strengthens the defense of the accused that, the custody of cheque in question was with the complainant much prior to the dated 12.08.2015, as such the claim of the complainant does not arise, Therefore, the complainant has misused the stolen cheque by filling necessary particulars in the cheque, accordingly Cheque has been materially altered hence section 138 of N.I.Act does not attract. When the Ex.D.1 which compares with the Ex.P.1 the writings in both were entirely different, accordingly the accused urged that, the complainant has not approached this court with clean hand.
25. Per contra, the counsel for the complainant argued that, as per the intervention of the police initially the 22 C.C.No.58021/2016 accused issued Ex.P.16 cheque for Rs.6,00,000/ it was bounced for "Funds Insufficient" however, subsequently the accused approached the Banasavadi police station, after intervention of the police, the accused had issued Ex.P.1 cheque for Rs.6,00,000/ and executed Ex.P.18 undertaking letter on 21.10.2014, by agreeing to pay Rs.6,50,000/, to the complainant, but subsequent to issuance of cheque Ex.P.1, the accused closed her account with an intention to cheat her, even though she was aware that, the cheque in question was in possession of the complainant. Further, the complainant had not taken any steps right from 2014, till filing of this compliant about alleged stolen of the cheque just in order to avoid the payment of amount, the accused has taken a false plea that the complainant has stolen her cheques, even to prove the alleged stolen of the cheque, the accused has not produced any evidence and not lodged any case against the complainant about alleged stolen of the complainant, though PCR filed by the accused, but it is subsequent to filing of this case. That apart, the accused admitted the cheque and signature on the cheque is of her, but, denied the contents which are sufficient in view of decision of Hon'ble Apex court in Bir Singh as such the 23 C.C.No.58021/2016 question of material alteration does not arise. Accordingly, urges that defense of the accused not tenable.
26. So, considering the rival contention of the parties, I have carefully perused the materials on record. The accused has deposed on oath that she had a financial transaction in the month of September 2012 with the complainant for sum of Rs.1,60,000/, however, she partly repaid sum of Rs.80,000/ in the month of October 2014. But, the complainant and father of the complainant had forcefully trespassed into her house on 14.10.2014 and removed her jewels and made her to count Rs.50,000/, which was kept by the complainant, as if she had sold furnitures to the complainant and also illegally obtained her signed blank cheques, signed bond papers and house hold articles same was video graphed. Accordingly, she approached Banasavadi police and lodged a complaint on 14.10.2014. But the matter was settled between them as per settlement she agreed to pay Rs.50,000/ to the complainant on or before 31.12.2014 24 C.C.No.58021/2016 and also agreed to keep the jewelers with the complainant for set off the money.
27. Accordingly, on 27.12.2014 she paid the agreed amount and obtained receipt from complainant i.e., Ex.D.1, even after the settlement of agreed amount the complainant harassed her to pay money, accordingly she closed her bank account and also lodged private complaint in PCR No.51917/2016. However, the complainant denies the alleged settlement held for Rs.50,000/ in the police station, the complainant claims that the matter was settled for Rs.6,00,000/ but not Rs.50,000/ towards settlement amount Rs.6,00,000/ Ex.P.1 issued by the accused dated 25.11.2015 and denied the allegedly stolen of the cheque. So, it is burden on the accused to prove the Ex.P.1 cheque stolen by the complainant on 14.10.2014, in order to prove her defense the accused relied upon Ex.D1 to 9 as per the accused Ex.D.1 is the receipt issued by the complainant on 27.12.2014 for payment of settlement amount of Rs.50,000/ held in police station.
28. However, the P.W.1 denies the same and specifically stated during the course of cross examination that the 25 C.C.No.58021/2016 Ex.D.1 issue towards purchase of furnitures of the accused as, the accused was intent to shift her residence to America, but the accused denied the same. However, during the course of cross examination of P.W.1 the accused herself suggested that in order to shift to America she had closed all the bank accounts, which clearly proves that the accused was herself to shift her residence to America. Furtherer, so far as furnitures are concerned, though the accused stated in her chief examination she asked the complainant to keep her jewelers to set off the loan borrowed in the year 2012, but she has not stated anything with respect to furnitures of concern, what was the terms of conditions of settlement held in between them in Banasavadi Police Station with respect to alleged cheques stolen by the complainant and also furnitures.
29. The P.W.1 admitted the complaint lodged by the accused on 14.10.2014 before the Banasavadi police station, but the accused has not produced the copy of the complaint lodged by her. However, though she produced purportedly a copy of complaint before the court, but not chosen to mark on her side, however it is on record. But the said copy of complaint does not bare the signature of 26 C.C.No.58021/2016 the police. Therefor, though in the complaint dated 14.10.2014 mentioned the alleged cheques and furnitures taken of by the complainant, but, what was settlement held in between them but the accused not produced any document to show that what was the settlement held in between them in the Banasavadi police station, which is crucial document to believe the defense evidence, because during the course of cross examination the complainant confronted the Ex.P.18 a letter issued by the accused has got marked through confrontation, in view of admission of signature by the accused which is dated 21.10.2014 i.e., subsequent to her complaint lodge to Banasavadi police station on 14.10.2014, despite confrontation of Ex.P.18 the accused does not denied the contents of Ex.P.18.
30. The counsel for the accused in his written argument vehemently argued that accused only admits signature but not the contents. However, but there is no explanation from the side of the accused that, under what circumstances signature had obtained or affixed her signature not stated and even does not denied the hand writing, who has written it, but the accused counsel 27 C.C.No.58021/2016 argued that it was stolen from the cupboard kept in the house of accused on 14.10.2014. But, on careful perusal of the complaint and evidence, it is not the claim of the accused that the complainant also taken her signed blank white papers, the accused claimed that the complainant had obtained her signed stamp bond paper, but the Ex.P.18 is not on stamp paper, the contents written on white paper, therefore, contention of the accused about denying of the contents on Ex.P.18 is not tenable. As such on careful perusal of the Ex.P.18 accused clearly agreed to pay Rs.6,50,000/ to the complainant within ten month from the date of 21.10.2014. That apart, even if her defense was considered to be true that on 14.10.2014 the matter was settled for only Rs.50,000/ and she paid Rs.50,000/ on 27.10.2014, then what was the settlement held in between them with respect to signed blank cheques, signed bond papers, furnitures, jewels alleged to have been forcibly taken by complainant, for that the accused is silent and not at all explained that, had she demanded for return of her cheques as it was obtained by the complainant on 14.10.2014 from her cupboard, for that there is no evidence to believe her defense.
28C.C.No.58021/2016
31. That apart, the accused herself produced her letter dated 03.07.2015 issued to her bank manager ICICI bank, Kammanahalli where in she clearly mentioned that as her cheque was lost along with her signatures, she does not want to trouble accordingly she requested to close the account, if so the letter addressed by her to her bank manager on 03.07.2015, subsequent to her complaint dated 14.10.2014 according to her a settlement was held in between her and the complainant in the police station as per the compliant dated 14.10.2014. As per the settlement she agreed to be paid Rs.50,000/ on or before 31.12.2014, accordingly she paid sum of Rs.50,000/ on 27.12.2014 and matter was ended in settlement. But there is no document to substantiate the alleged settlement held in between her and complainant for Rs.50,000/ and even her document dated 03.07.2015 discloses contrary to her defence about possession of the cheques, where in she claimed her singed cheques were lost. Accordingly, she requested to close her account, but, where as in her complaint i.e., on 14.10.2014 she claims that her signed cheques have been stolen by the complainant, so, considering her own documents, complaint as well as request to the bank manager, the 29 C.C.No.58021/2016 accused has taken multiple defenses, in one breath, she claims that, the complainant had stolen her signed blank cheque, in another breath, she claims that her cheques were lost subsequently. But, the accused even after in admitting signature Ex.P.18 produced by the complainant about settlement held in between them, has denied the contents of the Ex.P.18 and not produced any document to show that the settlement was held in between them for Rs.50,000/ and she does not claimed for return of her cheques even after alleged settlement for only Rs.50,000/. Therefore, the accused being a prudent woman, when she entered for settlement with complaint only for Rs.50,000/ what prevented her to demand the complaint for return of the alleged stolen of her cheques even though she alleges in her complaint, but there is no explanation from the side of the accused, in absence of any materials to prove the settlement held in between her and complainant in the police station, defence of the accused cannot be acceptable in view of contrary evidence on record produced by the accused only and also in contrary the complainant confronted Ex.P.18 dated 21.10.2014 subsequent to her complaint, the accused issued the letter of undertaking to pay sum of 30 C.C.No.58021/2016 Rs.6,50,000/ as per the settlement held in between them in the police station to corroborates the case of the complaint that, the accused herself during the course of cross examination of P.W.1 has suggested;
"that, it is false to suggest that, on the say of police the accused has issued the Ex.P.16 cheque to me, it is false to suggest that I have received Ex.P.1 cheque also in the Banasavadi police station"
32. So on these suggestion of the accused clearly strengthens the case of the complainant that, the Ex.P.1 cheque had issued by the accused in the Banasavadi police station, which corroborates the Ex.P.18 document and disproves the alleged stolen of the cheque by the complainant from the house accused. As such the question of stolen of cheque in absence of evidence to that effect cannot be acceptable, since the accused herself suggested the complainant that Ex.P. 1 cheque was issued by the accused in Banasavadi police station clear that the accused voluntarily issued Ex.P.1 cheque in favour of the complainant for Rs.6,00,000/, therefore the question of 31 C.C.No.58021/2016 material alteration does not arise, even if the writings in the cheques does not pertains to the accused, because it is well settled law that, the Hon'ble Apex court in Bir Singh V/s Mukesh Kumar has held that ;
" a meaningful reading of the provisions of the N.I.Act including, in particular, section 20, 87 and 139, makes it amply clear that a person who has signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that, the cheque had been issued for payment of a debt or in discharge of liability. It is immaterial that, the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provision of section 138 would be attracted.
If signed black cheque is voluntary presented to a payee, towards some payment, the payee may fill up the amount 32 C.C.No.58021/2016 and other particulars. This in itself would not invalidate the cheque,. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence"
33. So, the drawer of the cheque voluntarily issued said cheque with his signature even if it is blank, the complainant is empowered to fill up the contents as per section 20 of N.I.Act., which does not an illegal nor a material alteration. Therefore, in view of the above dictum and admission of the accused about signature i.e., Ex.P.1(a) on Ex.P.1 cheque, the question of material alteration even if the contents and writings in the cheques is not pertains to the accused, therefore the accused failed to establish the alleged stolen of the cheque as well as the material alteration, hence the arguments of the accused on these points cannot be acceptable firstly without proof with regard to alleged stolen of the cheque by the complainant from the house of the accused on 14.10.2014 and the alleged material alteration, therefore not acceptable. Accordingly, the decisions relied by the accused i.e., AIR 1986 AP 120, (2002) 1 SCC 97, (2016) 33 C.C.No.58021/2016 Crl.L.J.4338, (1996) 4SCC 591, (2009) 6 SCC 72 with regard to material alteration, marking of the documents, adverse inference, lost cheque are not applicable to the case in hand as the facts and circumstances of those cases are not applicable to the case in hand.
34. Further, the counsel for the accused vehemently argued by referring to cross of P.W.1 and legal notice of the complainant that as per the complaint the accused had approached her for loan in the month of May 2014 where as in cross examination the complainant has stated that in the month of January 2015, the complainant had approached for loan which is quite contrary to the case of the complainant as such there is variance with regard to date of approach for advancement of loan. Therefore, the case of the complainant cannot be acceptable. In addition to that, the complainant wisely not mentioned the date of complaint and settlement held in police station either in the complaint, legal notice or evidence affidavit, therefore by suppressing all these material the complainant approached the court with unclean hands as such the case of the complainant is doubtful cannot acceptable.
34C.C.No.58021/2016
35. On the contrary, the counsel for the complainant argued that, the complainant has specifically stated the date of advancement of the loan in legal notice as well in the complaint therefore there is no inconsistency. Further, the non mentioning of the date of complaint and settlement in the complaint does not ipso facto fatal to the case of complaint, as the complainant has specifically stated in her complaint that before the Banasavadi police station matter was settled for Rs.6,00,000/ and accused expressed her inability to pay the full loan amount and agreed to repay settlement amount of Rs.6,00,000/ on or before June 2015, which has been mentioned in para No.4 of the complaint, as such, there is no variance, discrepancy in the case of the complaint.
36. Considering the rival contentions, I have carefully scrutinized the material on record, the learned counsel for the accused by referring the cross examination dated 05.07.2019 highlighted the discrepancy with regard to date of approach by the accused for a loan stated by the complainant as well as in cross examination. It is true that, the date of approach as per the complaint on 2 nd 35 C.C.No.58021/2016 May 2014. However, in the cross examination, the P.W.1 has stated during the month of January 2014 the accused approached her for loan of Rs.12,00,000/, therefore, there is no discrepancy with regard to date of advancement of loan, the P.W.1 has categorically stated, the complainant had advanced loan amount of Rs.12,00,000/ on 02.05.2014. Therefore, there is no inconsistent with regard to date of advancement of loan, as such claimed variance is a minor discrepancy which does not goes to the route of the claim as such it is not at all a ground to dislodge the presumption that the debt was not in existence, so far as, non mentioning of date of complaint and settlement in the complaint is concern, though the complaint has not been mentioned by the complainant, but, the settlement held in between the complainant and the accused has been specified in para no.4 of complaint held before Banasavadi police station, the fact of settlement held on 14.10.2014 not been disputed by the complainant or the accused, such being the fact the mere non mentioning of date of complaint, does not tantamount that the complainant has approached the court with uncleaned hands, as the complainant has specified the settlement held on 36 C.C.No.58021/2016 14.10.2014 between them before the Banasavadi police station. Accordingly, though there is variance with respect to date of approach, non mentioning of date of settlement in complaint lodged by the accused does not itself is a ground to discredit the case of the complaint, as specifically specified the date of advancement of loan and the settlement held between before the Banasavadi police station in the year 2014, accordingly, I do not found any major discrepancies to disbelieve the case of the complaint. Hence the arguments of the accused not tenable.
37. Considering the entire materials on record, the accused admits that she had financial transaction with the complainant, but, according to her she borrowed only Rs.1,60,000/ in the month of September 2012 and repaid Rs.80,000/ towards that loan and she had only a balance of Rs.80,000/ for that the complainant allegedly entered into the house of accused and had taken out all the valuable such as furnitures, jewelers, signed blank cheques, signed stamp papers from the house of the accused, but, the complainant denied the same, however the complainant specifically stated that she purchased 37 C.C.No.58021/2016 furnitures from the accused for Rs.50,000/ but, same has been returned to the accused for that, the complainant claimed to have issued a receipt Ex.D.1. However, the complainant denies the receipt of Rs.50,000/ on 27.12.2014 towards settlement arrived before the Banasavadi police station on 14.10.2014. However to substantiate the alleged loan transaction between the complainant and accused held in the month of September 2014 the accused though produced Ex.D.3 but admittedly it does not contain either the signature of the complainant or any acknowledgment from the complainant about receipt of Rs.80,000/. Further, the accused specifically contended the Ex.D.1 is the receipt for Rs.50,000/ paid on 27.12.2014, but the complainant specifically denied and stated that, Ex.D.1 obtained by the accused for having return of furniture which she had purchased from the accused, for that even though the complainant specifically denied Ex.D.1 received for settlement of amount the accused failed to establish her furnitures is with the complainant which is relevant for consideration as the accused specifically contended that, it was paid towards agreed amount, however as held supra, the accused not produced any iota of materials to substantiate 38 C.C.No.58021/2016 her defense that, the matter was settled for only Rs.50,000/ and earlier to that she also repaid the amount of Rs.80,000/. In absence of that, the Ex.D.1 cannot be acceptable.
38. That apart, the accused specifically claimed that, cheque in question has been stolen by the complainant from her house on 14.10.2014. But, though the complainant admits the complaint lodged by the accused before Banasavadi police station, but, specifically denied the alleged stolen of the cheques, even then the accused not chosen to produce copy of the complaint received by the Bansavadi police which is crucial document since the accused claimed that the custody of the cheque in question with the complainant illegally. If so, the accused ought to have produced that, when the settlement held, what was the terms and conditions of the settlement, was the complainant admits custody of accused cheques with her, prior to the date of cheques, for that, nothing has brought on record by the accused, therefore, the very defence of the alleged stolen of the cheque has not been proved by the accused. On the contrary, the complainant confronted Ex.P.18 document to prove his case that on 39 C.C.No.58021/2016 21.10.2014 subsequent to the complaint lodged by the accused on 14.10.2014 the settlement was arrived for Rs.6,50,000/ though the accused admits the signature of Ex.P.18 but not bothered to deny the contents of the document, however the counsel for the accused for the first time during the course of arguments urged that the accused has denied the contents of the document, but, the accused not denied the contents of Ex.P. 18 and even the accused not bothered to prove under what circumstances she has affixed signature on Ex.P.18, whether she has affixed her signature in a blank paper or all the contents have been filled by the complainant, for that there is no explanation from the side of the accused, as such the custody of the cheque prior to the date of cheque has not been proved by the accused with the complainant.
39. Further as held supra, the material alteration does not arise as the accused admits his signature and once the accused failed to prove the alleged stolen of the cheque the question of material alteration doesn't arise unless and until the accused proves that she had not issued the cheque voluntarily issued but in contrary to her defense by the accused suggested the P.W.1 about 40 C.C.No.58021/2016 issuance of Ex.P.16 and Ex.P.1 cheque in the Banasavadi police station in favour of the complainant, so the suggestion and defence taken by the accused are quite contrary to each other, therefore the inconsistent defence plea cannot be acceptable. As such, the question of material alteration doesn't arise, therefore, considering entire material on record the accused failed to establish the transaction between the complainant and was only Rs.1,50,000/ and the settlement was arrived between them for only Rs.50,000/ on 14.10.2014 before Banasavadi police station, towards payment of settlement amount the Ex.D.1 has been issued by the complainant and transaction was ended in payment of Rs.50,000/, therefore, on failure to prove all these aspects the Ex.P.18 clearly strengthens the case of the complainant that the accused had agreed to settle the matter for Rs.6,50,000/ on 21.10.2014 in writing, soon after her complaint lodged before Banasavadi police station and issued cheque in question for Rs.6,00,000/ it is legally enforceable debt, further, in her letter addressed to the bank manager the reason for closing of her account has been shown as her Cheque were lost which is dated 03.07.2015 much prior to the date of presentation of cheque in question which is 41 C.C.No.58021/2016 quite contrary to her defense as such the accused failed to brought out probable defenses that as on the date of Cheque i.e., 25.11.2015 the debt was not in existence and cheque in question was not issued towards discharge of the agreeed amount as per Ex.P.18, therefore, the accused failed to brought out the acceptable materials to dislodge the presumption drawn in favor of the complainant. Hence the complainant has proved the existence of legally enforceable debt by producing Ex.P.18 and issuance of Ex.P. 1 cheque in question towards the agreed settlement amount of Rs.6,00,000/ as such the complainant has proved all the ingredients of section 138 of N.I.Act. Hence, accused is found guilty of an o/p/u/s 138 of N.I.Act.
40. It is well settled law that, section 138 of N.I.Act is primarily it is compensatory in nature, punitive is secondary, so, on considering the above settled principal of law the fact and circumstances of the case, as per Ex.P.18 dated 21.10.2014, the matter was settled between the parties for Rs.6,00,000/ and agreed to be paid the same within July 2015, but the accused failed to pay the amount even after dishonour of Ex.P.1 Cheque, 42 C.C.No.58021/2016 however, there is no clause with regard to interest on failure to pay the settlement amount in Ex.P.18. Therefore considering the nature of transaction and duration of pendency, if the accused is sentenced to pay fine of Rs.7,05,000/, that would meet the ends of justice. Accordingly, the accused is hereby sentenced to pay fine of Rs.7,05,000/ out of which the complainant is entitle for sum of Rs.7,00,000/ as a compensation U/s 357(1) of Cr.P.C., remaining amount of Rs.5,000/ is to be appropriate to the state, in case of default the accused shall under go simple imprisonment for a period of 6 months. Hence, I answered this point in the Affirmative.
41. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act.
The accused is sentenced to pay a fine of Rs.7,05,000/ (Rupees Seven lakh five thousand only) in default, the accused shall 43 C.C.No.58021/2016 undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C. the complainant is entitled for Rs.7,00,000 /.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 17th day of January, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Mrs. Smitha. Anthony
2. Documents marked on behalf of complainant:
Ex.P.1 :
Ex.P.1(a) : Signature of the accused
44
C.C.No.58021/2016
Ex.P.2 : Bank returned memo
Ex.P.3 : Office copy of the Legal notice
Ex.P.4 : Postal receipts
Ex.P.5 : Postal acknowledgement
Ex.P.6 : Reply notice
Ex.P.6(a) : Postal cover contain Ex.P6
Ex.P.7 : Postal cover
Ex.P.8 to 17 : eight light bills, one cheque, bank
endorsement
Ex.P.18 Her Admission
3. Witnesses examined on behalf of Accused:
D.W.1 Smt. Valerie Price
4. Documents marked on behalf of Accused:
Ex.D.1 : Receipt
Ex.D.2 : Certified xerox copy of receipt
Ex.D.3 : Account statement maintained by me
Ex.D.4 : Letter issued by banker
Ex.D.5 : Declaration U/s 65B of Indian Evidence
Act
Ex.D.6 to 8 : Compact Disc
Ex.P.6 : Reply notice
(M.Vijay),
XXXIII ACMM, BENGALURU.